Lockerbie: should justice be seen to be done?

Two Libyan men stand accused of the appalling and cowardly murders of 270 passengers, crew and members of the public on the ground, following the destruction by a terrorist bomb of the transatlantic Pan Am flight over the small Border town of Lockerbie on 21 December, 1988.
A Special Court of high security at Camp Zeist in the Netherlands has been empowered to hear the trial, which will be conducted under Scottish law, and presided over by three Scottish judges, without a jury.
Four secure remote sites have been approved by the court, at the request and expense of the US Office for Victims of Crime (OVC), at which grieving families could attend (provided they maintain appropriate decorum) and witness live televised footage of the trial, encrypted and transmitted by a fibre-optic cable down a telephone line, rather than by satellite, to prevent access to and re-broadcast by others.
At the end of each day, all videotapes would be erased. (A similar model adopted by OVC worked well at the trial arising from the Oklahoma explosion). The Crown was not involved in the installation of the cameras in the courtroom, and they were not the equipment of the BBC.
Since 1992, provided there was no risk to the administration of justice, television cameras could be present at a Scottish (but not English) trial, although not at criminal cases at first instance, due to the risk of prejudice to the jury or effect upon witnesses, but only with permission of the judge and consent of all parties.
Despite requests, the accused refused to consent to a televised trial. In addition to news bulletins, the BBC also wanted to broadcast the entire trial on the internet. The High Court of Justiciary retains the nobile officium, a supreme power and overriding authority in equity, which may be exercised in extraordinary circumstances, particularly where there is no other avenue for review open to the petitioner.
The BBC issued two petitions, the first resulting in the opinion of Lord MacFadyen of 7 March, 2000, the second resulting in the opinion of Lord Kirkwood, in the chair of the Appeal Court, on 20 April, 2000. Together, they reveal why the BBC was denied permission to broadcast.

The first opinion
The BBC conceded the application was unique, and did not seek to establish any precedent either in domestic Scottish law, or by reference to the European Convention on Human Rights (ECHR), that broadcasters may broadcast proceedings in criminal trials generally. However, they relied on a letter from the US and UK Ambassadors to the UN Secretary General in 1998, which gave assurances that “adequate provision [was] being made for the media”, provided the trial was held in public.
The Crown saw “formidable obstacles”, because what was being sought was new, and not permitted in England or elsewhere in Europe. Its concern was the risk to justice of the effect on witnesses, many of whom could not be compelled to attend as they were beyond the Scottish jurisdiction.
The Procurator Fiscal had, for some time, been engaged in precognition of witnesses all over the world, working in close co-operation with local lawyers, who concluded that if the trial was televised, many witnesses would not attend, whether out of concern for their own safety, loss or privacy, or mere nervousness. There were concerns that witnesses would play to the gallery, or be influenced by what other witnesses had said (it being a rule of Scots law that witnesses should generally not hear earlier evidence).
As for the accused, they had voluntarily agreed to attend trial on the clear understanding that it would be conducted according to Scots law and practice. They had both specifically enquired whether the trial would be televised, in 1993 and 1999, and had been assured that it would not.
Lord MacFadyen found “a clear distinction between the transmission to the remote sites… and the broadcasting of the proceedings to the general public… Access to those sites is not to be open to the general public, but is to be strictly controlled and available only to a defined category of person. The arrangement is made in recognition of the fact that the relatives of the victims… have a particular interest in watching and listening to the proceedings as they happen, but for geographical and economic reasons would have difficulty in attending a courtroom in the Netherlands.
“The fact that there is no Scottish precedent for transmission of criminal proceedings to sites remote from the courtroom… does not seem to me to be material. Nor is the fact that two of the remote sites [New York and Washington] are to be in a foreign state and the third [London] in a different jurisdiction”. In short, the sites were merely extensions of the courtroom.
Notwithstanding this, and taking into account that the broadcasting companies did not intend the trial to be a profit-making venture and would make no claim to intellectual or other exclusive rights in the recording, he recognised “at once the legitimacy of the interest they have in the matter” and that the conduct and outcome of the trial was “of great public interest… throughout the international community” and could “properly be described as unique”. In view of the difficulties of members of the Scottish public attending the trial in the Netherlands, Lord MacFadyen wished to “underline the importance of full and detailed reporting of the proceedings by all news media”.